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TMI Blog2011 (5) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. ST/249/09) is for waiver of pre-deposit and stay of recovery in respect of service tax of Rs. 5,82,62,946 and equal amount of penalty. In both the cases, the Commissioner of Central Excise has demanded service tax from the assessees for the period from 16-6-2005 to 31-3-2008 and under the head " Management, Maintenance or Repair Service". As the factual matrices, on the basis of which the department issued the respective show-cause notices to the assessees, are admittedly similar, we would like to take the case of M/s. VIVA Highways Private Ltd. as a specimen for the present purpose. VIVA had entered into a "Concession Agreement" with M/s. Madhya Pradesh -Rajya Setu Nirman Nigam Limited (hereinafter referred to as 'NIGAM') for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or through O & M Contractors. The maintenance works to be so undertaken included the following:- (i) Undertaking routine maintenance including prompt repairs of potholes, cracks, concrete joints, drains, line marking, lighting and signage ; (ii) Undertaking major maintenance such as resurfacing of pavements, repairs to structures, repairs and refurbishment of tolling system and hardware and other equipment; (iii) Carrying out periodic preventive maintenance to Project Highway including tolling system. 2. After completing the construction of the road, VIVA started collecting toll from users of the Highway at the prescribed rates during the period of dispute. 3. In a show-cause notice dated 14-10-2008, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd raised on M/s. Ashoka Infraways Private Limited also. 4. Ld. counsel for the appellants submitted that the projects undertaken by them were turnkey projects covered by works contract. It was submitted that their activities would, at best, be covered under "works contract" service which became a taxable service only with effect from 1-6-2007. The ld. counsel, however, submitted that construction of road would not come even within the ambit of 'works contract service' inasmuch as it was excluded from the purview of "commercial and industrial construction service". According to the ld.counsel, the legislative intent was to exclude the construction of roads, drains, bridges etc. from service tax net. In any case, maintenance or repairs of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation, being a State Government Undertaking, was engaged in the business of construction of roads, buildings etc. within Bangalore city. They undertook the work for Government agencies. According to the Revenue, the Corporation was rendering services of "maintenance or repair" of immovable properties. The assessee claimed the benefit of Notification No. 17/2005, dated 7-6-2005 which granted exemption from payment of service tax on services rendered in the course of construction of roads, airports, railways transport terminals etc. The tribunal, prima facie, found that the services undertaken by the Corporation in relation to roads were in the eminent domain of the State and not taxable under the head " Maintenance or Repair" of immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was liable to raise an invoice on the service recipient and that the taxable value for levy of service tax required to be determined on the basis of such invoice. In the present cases, the appellants were not required to raise any invoice on NIGAM under the relevant contracts. According to the ld.counsel, the determination of taxable value in these cases by deducting the amortized cost of construction of roads from the total toll collection is arbitrary. 9. The ld.JCDR has opposed the above submissions. According to him, service tax is leviable from the appellants under the head "Management, Maintenance or Repair services" in respect of the "operation/maintenance/repair" elements of the relevant contracts. The "Concession Agreement" in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions, we are not impressed with the submissions made on behalf of the Revenue at this stage. Prima facie, the appellants are entitled to the benefit of the stay orders cited by the ld.counsel. Some of these orders were based on similar set of facts. The ld.JCDR has not claimed that those stay orders cited by the ld.counsel were successfully challenged by the department. Prima facie, the appellants have also made out a case on limitation. The circular cited by the ld.counsel indicates that different practices were followed by different field formations in the department with regard to levy of service tax on "management, maintenance or repair" services in relation to roads and other immovable properties. These different practices and vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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